On January 14, the Colorado Supreme Court issued a unanimous opinion that the Colorado Oil and Gas Conservation Commission (Commission) properly declined to undertake a rulemaking proceeding that was designed to preclude the Commission from issuing new permits unless the “best available science,” as confirmed by the findings of an independent third-party organization, determines that the drilling will occur in a manner that does not cumulatively impair the state’s atmosphere, water, wildlife, land resources and does not contribute to climate change. The case is Colorado Oil and Gas Conservation Commission, et al., v. Martinez, et al.
The California Natural Resources Agency (CNRA) recently posted final adopted text for amendments to the CEQA Guidelines. The result of over five years of development efforts by the Governor’s Office of Planning & Research and CNRA, the amendments are the most comprehensive update to the CEQA Guidelines since 1998. In “Natural Resources Agency Finalizes Updates to the CEQA Guidelines,” Pillsbury environmental attorneys Norman F. Carlin, Kevin Ashe and Eric Moorman explore the wide range of issues covered in the amendments, including the new Vehicle-Miles-Traveled (VMT) methodology for analyzing transportation impacts; use of regulatory standards as significance thresholds; environmental baselines; and numerous procedural and technical improvements.
Pillsbury attorneys Stephan E. Becker, Charles F. Donley II, Emily B. Erlingsson, Brian E. Finch, Aimee P. Ghosh, Meghan C. Hammond, Gerry Hinkley, Laura E. Jennings, The Honorable Gregory H. Laughlin, Jeffrey S. Merrifield, Elizabeth V. Moeller, Matthew Oresman, Craig J. Saperstein, Edward W. Sauer, and Deborah S. Thoren-Peden discuss the 2018 Midterm Election and assess some of the top issues where the incoming 116th Congress will likely be most active, including:
- Congressional Investigations
- Financial Services
- Tax Reform
- Cybersecurity and Privacy
- Foreign Policy, International Trade, and Sanctions
- Energy and the Environment
- Transportation and Aviation
- Health Care
- State and Local Government
- Compliance, Ethics, and Campaign Reform
- Ongoing incentives at the state level for offshore wind, other forms of renewable power, and electric storage;
- Impacts of dueling tariffs and trade restrictions on the energy industry;
- Reversals of federal policy on greenhouse gas emissions and on lands open to hydrocarbon development;
- The Federal Energy Regulatory Commission’s decision in Calpine v. PJM Interconnection and its consequences for wholesale electricity markets; and
- Cybersecurity and blockchain developments affecting the national grid.
On October 18, the Illinois Supreme Court decided the case of Ameren Transmission Co. of Illinois v. Hutchings, et al. According to the Illinois Supreme Court, there is no presumption that Illinois courts have subject-matter jurisdiction over administrative actions. The availability of any review of this determination was controlled by the Public Utility Act (PUA), and under that law, the Circuit Court had no authority to assess the constitutionality of the Illinois Commerce Commission’s (Commission) proceedings when it was sitting as a court of general jurisdiction.
On August 21, the U.S. Court of Appeals for the District of Columbia decided the “coal combustions residuals” case: Utility Solid Waste Activities Group, et al. , v. EPA. This new Resource Conservation and Recovery Act (RCRA) case could have important implications for the coal industry and powerplants that use coal.
Within the past few weeks, the U.S. Court of Appeals for the Fourth Circuit has issued some very significant rulings regarding the construction of new natural gas pipelines. These cases are Berkley, et al. v. Mountain Valley Pipeline, LLC, decided July 25; Sierra Club, Inc., et al., v. U.S. Forest Service, The Wilderness Society, et al., v. U.S. Forest Service, and Sierra Club, Inc. et al. v. U.S. Department of the Interior, decided July 27, 2018; and Sierra Club v. U.S. Department of the Interior and Defenders of Wildlife, et al., v. U.S. Department of the Interior, decided August 6, 2018. The first two cases involve the Mountain Valley Pipeline, and the last case involves the Atlantic Coast Pipeline.
The Federal Energy Regulatory Commission (FERC) has issued Certificates of Public Convenience and Necessity to these pipelines, but since the construction and operation will require various federal permits and authorizations, these federal regulatory actions are frequently being challenged in the courts. Continue reading
On July 19, the U.S. District Court for the Southern District of New York decided the case of City of New York v. BP P.L.C., et al., granting the defendants’ motion to dismiss and dismissing the City of New York’s amended complaint. The amended complaint alleged three causes of action: (1) public nuisance; (2) private nuisance; and (3) trespass, and sought compensatory damages and an equitable order ascertaining damages and granting an injunction to abates these injuries, which would not, however, take effect unless the defendants failed to pay court-determined damages.
On July 10, the U.S. Court of Appeals for the D.C. Circuit decided another Federal Energy Regulatory Commission (FERC) case, Delaware Riverkeeper Network and Maya Van Rossum v. FERC. The plaintiffs levelled a broad US. Constitutional Due Process Clause challenge at the statutory mandate from Congress that FERC recover its costs from the industries it regulates. The plaintiffs argued that this provision “improperly incentivizes” FERC to grant more new natural gas pipeline applications to ensure itself of sufficient future funding. This argument was dismissed by both the U.S. District Court and the Court of Appeals.
Another important case was decided by U.S. Court of Appeals for the D.C. Circuit on July 6, American Rivers and Alabama Rivers Alliance v. FERC. The Alabama Power Company, whose application to re-license its electrical power generating facility serving Coosa River Basin in Alabama, GA, and TN was at issue, is an Intervenor in the case. In 2013, FERC granted Alabama Power a 30 year renewal license to operate this plant, consistent with some new conditions attached to the renewed license. This action was challenged before the FERC by these petitioners, but FERC denied their requests for reconsideration. They argued that FERC, in re-licensing this facility, violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The Court of Appeals , noting that the ecosystem was in a “fragile condition” after decades of power plant operations and development, agreed with the plaintiffs that the actions taken by FERC and as supported by a Biological Opinion of the U.S. Fish and Wildlife Service (Service), were in violation of these statutes. FERC’s licensing decision was vacated and the matter was remanded to FERC.